23 Grouse Drive, LLC v Hermitage Ins. Co.
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23 Grouse Drive, LLC v Hermitage Ins. Co. 2012 NY Slip Op 30661(U) March 6, 2012 Supreme Court, Nassau County Docket Number: 315/10 Judge: Thomas Feinman Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] S, C SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK COUNTY OF NASSAU Present: Hon. Thomas Feinman Justice 23 GROUSE DRIVE, LLC and PASQUALE FEDELE ASCULLI, a/a P ASCULLI FEDEL a/a FEDELE P TRIALIIAS PART 9 NASSAU COUNTY INDEX NO. 315/10 Plaintiffs x X X MOTION SUBMISSION DATE: 1/20/12 - against - HERMITAGE INSURANCE COMPANY Defendant. MOTION SEQUENCE NOS. 1 The following papers read on this motion: Notice of Motion and Affdavits..................... Notice of Cross- Motions and Affidavit......... Memorandum of Law in Support ofMotion.. Affirmations in Opposition.... ......................... Reply Affirmation........................................... Memorandum of Law in Support of Reply..... RELIEF REOUESTED a/a Pascull Fedel a/a Fedele The plaintiffs , 23 Grouse Drive , LLC and Pasquale Fedele " and " Fedele Pascull" ), move for summar Pascull, (hereinafter referred to as " 23 Grouse Drive Hermitage judgment. The defendant , Hermitage Insurance Company, (hereinafter referred to as " cross-moves for sumar judgment and submits a Memorandum of Law in support of its crosscross-motion. The defendant submits a reply motion. The plaintiffs submit opposition to the affrmation and Memorandum of Law in support of its reply. The plaintiffs initiated this declaratory judgment action summar judgment , seek a declaration that the action entitled , and by way of the instant motion for Gerard Brady Grouse Drive bearing Index Number v. 23 LLC and Pasquale Fedele a/k/a Pascull Fedele a/k/a Fedel Pascull Nassau, (hereinafter referred to as the underlying 1912/09, in the Supreme Cour, County of Fedele Pascull , that the defendant be action ), is covered by the terms of the policy issued to , 23 Grouse Drive and Fedele Pascull, that the obligated to defend and indemnify the plaintiffs defendant be obligated to pay any damages which may be awarded against thecontract , thatthis insurance plaintiffs in the. , and in the underlying action , pursuant to the terms of the action [* 2] defendant be obligated to pay attorneys ' fees expended by the plaintiffs in defense of the underlying action , and award plaintiffs costs and disbursements. The defendant , by way of cross-motion , seeks a declaration that the defendant has no duty to defend or indemnify plaintiffs in the underlying action. BACKGROUND The plaintiffs provide that Pascull Fedele was the sole shareholder and President of 23 Grouse Drive , LLC, a corporation formed in 2007 , which dissolved in 2010. The nature of the corporation was rental propert. Fedele Pasculli testified that the premises located at 23 Grouse Drive , Brentwood , New York , a five bedroom , two bathroom house , was purchased as rental property and income propert. The propert was sold sometime in February 2009. Fedele Pasculli submits that the house was rented to two individuals under a verbal lease , and that he personally collected rent on a monthly basis. Rent was paid in cash. The plaintiffs were issued a commercial general liabilty policy from the defendant covering the premises , effective September 20 , 2007 through September 20 , 2008. On or about April 26 , 2008 , Gerard Brady, (hereinafter referred to as ' Brady ), allegedly fell at the subject premises and sustained serious injuries. Brady, plaintiff in the underlying action initiated the underlying action as and against 23 Grouse Drive and Fedele Pascull , alleging negligence and labor law claims. The complaint alleges that Brady fell at the subject premises while working under the under the instrction of.Fedele Pascull , unsafe working conditions including failure to provide proper equipment , a safe ladder, and adequate supervision. The defendant disclaimed coverage under the Employer s Liability Exclusion and the s Exclusions. The defendant' s disclaimer under the Employer s Liability Exclusion provision excludes coverage for bodily injur to an employee performing duties related to the conduct of the insured' s business , whether the insured may be liable as and employer , or in any other capacity. The defendant's disclaimer under the Independent or Subcontractors Conditions Independent Contractor Endorsement provision which excludes coverage for bodily injury arising out of any and all work performed by an independent contractor or subcontractor , regardless of whether the work is performed on the insured' s behalf, or for others. DISCUSSION The plaintiff argues that the policy exclusion provisions cited by the defendant do not apply, and that the defendant canot show that the allegations in the complaint can only be interpreted to exclude coverage. The plaintiff refers the paragraph " 8" of the complaint in the underlying action The plaintiff fell while working under the instruction of defendant , Fedele , at the aforesaid premises , and submits such language " at best may present a question of whether the employee exclusion would apply . Plaintiff contends there are various interpretations to such language. The plaintiff also argues that Brady was not his employee , and was not hired by plaintiffto perform work at the premises. [* 3] It is well settled that provisions of an insurance contract which are clear and unambiguous must be enforced as written. (Breed Pennsylvania Mutual Insurance Co. v. Insurance Co. , 130 AD2d 974; NA. 46 NY2d Pennsylvania General Ins. Co. Venigalla 351; v. Kielon 112 AD2d 709). It is also well settled that a default in answering the complaint is deemed to be an admission of all factual allegations contained in the complaint and all reasonable inferences that flow from (Woodsonv. MendonLeasingCorp. , 100NY2d62;AI Fayedv. Barak 39 AD3d 371). Itwas them. held to be error when the lower court reopened and redetermined the issue of Hass ' liability, when Hass , by defaulting, was deemed to have admitted liability and should have only been permitted to Robustiano 68 AD3d 1496). v. (DD&P Realty, Inc. contest the amount of damages at inquest. A defaulting defendant admits to all traversable allegations in the complaint , including the (ABBAS basic issue of liability, however , does not admit to plaintiff s conclusion of damages. Cole 44 AD3d 31). An insurer could not go behind an underlying default judgment to raise defenses 181 v. Security Mutual Insurance Company, extending to the merits of plaintiff's claim (Matychak (Grover Hil Assoc. AD2d 957), but is entitled to proffer evidence concerning its disclaimer Colonial Indem. Ins. Co. 24 AD3d 607). An insurer has "the opportunity to meet its burden to establishing that it has no duty to indemnify because ofthe actual basis for the insured' s liabilty to 236 AD2d v. Michigan Milers Mutual Ins. Co. (Robbins plaintiff' may fall under an exclusion. 769). An " insurer is entitled , in a direct action against it , to raise defenses with respect to its obligations to cover the claims against (the) insured , including the applicability of any asserted (Klnvestment policy exclusions " in the face of a default judgment obtained in the underlying action. 91 AD3d 401). v. American Guaranteed Liabilty Insurance Company, Group, LLC Here , this court does not find the plaintiff s selected portion of the complaint in the underlying action to wit The plaintifffell while working under the instruction of defendant , Fedele at the aforesaid premises , as ambiguous. More importantly, the policy exclusion provisions relied upon by the defendant are clear and unambiguous. showing that the policy exclusions apply. aprimafacie However , the defendant has made Brady initiated an action as and against 23 Grouse and Fedele Pasculli in the underlying action asserting allegations of negligence and Labor law violations. Brady claimed that he fell at the subject premises on April 26 , 2008 while performing work at the subject premises on behalf of23 Grouse and Fedele Pasculli. Brady averred, in an affidavit in support of Brady ' s motion for a default judgment , that he " was hired by the defendants (23 Grouse and Fedele Pascull) to replace windows on the side of their house. " Brady furher averred that Fedele Pasculli provided the ladder , and was holding the ladder , when Fedele Pascull walked away causing Brady to fall onto the ground and sustain injuries. The defendant' s claims examiner submits that as per the investigation conducted by the defendant , coupled with the underlying pleadings , the defendant concluded that the Independent Contractors Exclusion and Employer s Liabilty exclusion were applicable to this loss. The plaintiff, Fedele Pasculli , as per his deposition testimony, does not deny that Brady fell on April 26 , 2008 , and provides that he learned that Brady fell on the same day (April 26 , 2008), went to the premises shortly thereafter , saw a ladder , at the exterior ofthe premises , and was told by Brady that Brady fell off the ladder while he was performing some type of work to a window. However, Fedele Pasculli denied that he held the ladder for Brady, that Brady was doing work on his behalf, and that he gave Brady a ladder. However , as already provided , FedelePascull , a [* 4] defaulting defendant , admitted to all traversable allegations in the complaint, including the basic the issue of23 Grouse and Fedele Pasculli' s liability canot be reopened. issue ofliabilty, and therefore , The plaintiffs contention that the policy exclusions do not apply, and the plaintiffs self. serving statement that he did not hire Brady to perform work on plaintiffs ' behalf, are unavailing. CONCLUSION In light of the foregoing, the plaintiff s motion for summar judgment is denied , and the defendant's cross-motion for summar judgment is granted. The defendant is hereby directed to Settle Judgment on Notice to the Clerk. A copy ofthis order with notice of entry shall accompany the proposed judgment. Dated: March 6 , 2012 cc: Mound Cotton Wollan & Greengrass , Esqs. Jakubowski , Robertson , Maffei , Goldsmith & Tartaglia, LLP ENTE MAR 1 2 2012 NASAu COUNTY COUNTY CLERK' S OFFICE
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